07.29.10

Schiff Introduces the Questioning of Terrorism Suspects Act of 2010

Washington, DC– Today, Rep. Adam Schiff (D-CA) introduced legislation to allow for more thorough interrogations of suspected terrorists. Rep. Schiff’s Questioning of Terrorism Suspects Act of 2010 will ensure that, in terrorism cases, the courts broadly interpret the public safety exception to the Miranda warning requirement, allow the government adequate time to question a suspect before bringing the suspect before a magistrate, and clarify that Miranda does not apply in most cases when a suspect is in foreign custody.

“The foiled attacks of the Times Square bomber and the Christmas Day bomber have demonstrated the unique national security concerns implicated when terrorism suspects are captured in the United States,” Rep. Schiff said. “Our law enforcement and intelligence agencies have gained important intelligence by interrogating the suspects in these cases, and this bill seeks to ensure that they will continue to have every opportunity to do so with other suspects in the future. The provisions of this bill will help guarantee our national security needs are met, while establishing a level of due process that is consistent with our adherence to the rule of law.”

“The application of Miranda poses some important and challenging issues in the context of terrorism,” said Philip B. Heymann, James Barr Ames Professor of Law at Harvard Law School. “Rep. Schiff’s proposal is a fair and effective approach to balancing the competing security and civil liberties concerns.”

The Questioning of Terrorism Suspects Act of 2010 declares that the “public safety exception” to Miranda allows for interrogation of terrorism suspects, without providing Miranda warnings, for as long as is necessary to protect the public from imminent threat from pending or planned attacks. Terrorist attacks have often involved multiple perpetrators and simultaneous attacks, and an extended interrogation may be necessary to protect the public in these cases. The bill expresses Congressional intent that this "public safety" exception be broadly read by the courts in terrorism cases.

In addition, under current law confessions are rendered inadmissible if given during periods of detention that violate the prompt presentment requirement in the Federal Rules of Criminal Procedure. In practice, this has been found to require that a suspect must be presented before a magistrate within six hours of his arrest or his confession may be thrown out.

To ensure that authorities have sufficient time to interrogate terrorism suspects, the Questioning of Terrorism Suspects Act of 2010 extends this period to 48 hours in the case of terrorism suspects, provided that the Attorney General and the Director of National Intelligence (or their deputies) certify, within six hours of arrest, that the individual is a terrorism suspect and may be able to provide intelligence necessary to protect the public. The period may be extended for an additional 48 hours for good cause shown.

Finally, some courts have held that Miranda warnings apply to some overseas custodial interrogations conducted by foreign officials, namely when the interrogation is a joint venture in which U.S. officials are participants. However, in many cases, the full warnings set out in Miranda cannot be provided to terrorism suspects in foreign custody, since the rights referenced may not be available to the individual in that particular country. The Questioning of Terrorism Suspects Act of 2010 declares that Miranda warnings are not required during overseas questioning of a terrorism suspect in foreign custody.

Rep. Schiff was the first in Congress to introduce legislation addressing the status of enemy combatants in 2002 and has introduced numerous bills on the issue subsequently. Rep. Schiff is a member of the House Select Committee on Intelligence, the Judiciary Committee, and the Appropriations Committee. He also served as an Assistant U.S. Attorney in Los Angeles for six years successfully trying national security cases.